From: Sandy Thatcher <[log in to unmask]>
Date: Mon, 19 Mar 2012 23:02:11 -0500

I've read the filings in the case and don't recall seeing any argument
made that libraries have no "fair use" rights whatsoever.  (If that
were true, every e-reserve system would have to be shut down
immediately.) I believe that the argument is about whether fair use
applies to posting the products of mass digitization, just as Google
was challenged on its "fair use" claim for the digitization itself.
And the argument also is over whether Section 108 provides any
justification for the posting of orphan works.

Sandy Thatcher


> From: Kevin Smith <[log in to unmask]>
> Date: Mon, 19 Mar 2012 12:00:58 +0000
>
> Just want to point out that the Author's Guild lawsuit against Hathi
> Trust and five of its partner institutions is about access to orphan
> works, not reuse.  The failed Google Books Settlement has given some
> organizations a taste for making a profit by selling such access, IMO,
> and they are anxious to prevent any successful non-commercial method
> of providing access to orphans.  This is why the recent filing in the
> Hathi lawsuit insists that there is no fair use for libraries at all,
> to prevent libraries arguing fair use as a justification for access to
> orphan works.
>
> I very much wish the world was as Sandy suggests, but I am afraid I
> see a much more contested landscape, even over basic access to works
> that are not subject to any commercial exploitation.
>
> Kevin L. Smith
> Duke University
> [log in to unmask]
>
> -----Original Message-----
> From: Sandy Thatcher <[log in to unmask]>
> Date: Fri, 16 Mar 2012 19:36:21 -0500
>
> But is not the general problem that we identify under the rubric of
> "orphan works" mainly a matter of making commercial re-use of those
> works through derivative works, adaptations to other media, reprinting
> portions in anthologies, translations, and the like? After all, we can
> all make some use of "orphan works" under fair use, so it is not as
> though they are completely unusable. I don't believe  people have
> talked about the problem of orphan works as a matter of access, but
> rather re-use beyond fair use.
>
> Sandy Thatcher
>
>
>>  From: Jean-Claude Guédon <[log in to unmask]>
>>  Date: Thu, 15 Mar 2012 21:43:30 -0400
>>
>>  Personally, I prefer CC-by, but if someone chooses CC with a
>>  non-commercial clause, the article does remain freely accessible and
>>  usable, whatever happens to the author, and this is what concerns
>>  researchers most. As for the fuzzy and troubling areas about the NC
>>  (does publishing with advertising count as commercial use, for
>>  example?), they can be a concern, but not for researchers so long as
>>  the same article is in a regular depository run, for example, by a
>>  library. At least, I cannot think of a situation where a researcher
>>  wanting to read, use and cite research results would run afoul of a
>>  CC-NC constraint. If we remember that scientific communication is
>>  there to serve researchers first, and not publishers first (or at
>>  all), such issues are of a second-order nature. In other words, in the
>>  context of a first approximation, they can be neglected.
>>
>>  Jean-Claude Guédon
>>  Professeur titulaire
>>  Littérature comparée
>>  Université de Montréal